Farah Peterson

Constitutionalism in Unexpected Places

Before, during, and after the ratification of the Federal Constitution of 1787, Americans believed that they were governed under an unwritten constitution, a constitution that described an arrangement of power, confirmed ancient rights, and restricted government action. The existence of this unwritten constitution, and particularly its continuity, is something legal scholars have not adequately understood. Instead, both originalists and scholars of the “living” constitution think of 1787 as a hard break from the past and a starting point for their investigations.

But Americans of the Founding generation did not share our view that the only constitution that mattered was the one the Framers designed. This Article focuses on a feature of American colonial life that reappeared with striking continuity for three generations after Independence—the vindication of unwritten constitutional rights by mob action, and specifically, the tradition of mobs turning to Indian costume to express a specific series of constitutional grievances. During the age of the Revolution, many Americans believed that mobs in the streets performed a legitimate role in the enforcement of their unwritten constitution. These mob actions involved ritualistic violence and consistent, non-linguistic symbolism. The endurance of this form of constitutional engagement, employing the same symbols to assert the same suite of legal claims, is simply astonishing. It is evidence of the tenacity of a series of constitutional commitments predating the Founding that were not encompassed by, or replaced with, a written constitution.

This Article also makes a methodological point. An exclusive focus on official texts and the words, pamphlets, and letters of great men robs historical investigation of its depth and risks missing crucial insights about the past. Important evidence revealing how Americans conceived of their constitution and of themselves as legal actors can be found in their customs, in behavior, in performances in public spaces, and in the life of important ideas in literature and art. This Article focuses on a peculiar phenomenon as a way of modeling this point. The white protestor in Indian costume may seem like an oddity, but a deeper investigation reveals him to be a missing link, a key to how Americans believed their society was constituted, how they thought about justice, and how they understood the obligations the Revolution laid upon its inheritors.

Introduction

What every schoolchild learns about the Boston Tea Party is that a group of men dressed themselves as Indians and dumped tea into the Boston Harbor. If the social studies teacher is good and the child is paying attention, the lesson will also connect those actions to the proto-Revolutionary slogan, “no taxation without representation.” But why do we teach the Boston Tea Party this way? We do not remember what other men were wearing when they did other historically significant things. For this event, however, the choice of costume has always been an integral element of the story. In the 1830s, an old shoemaker looking back on his role in the Tea Party began his recollections of that night this way:

It was now evening, and I immediately dressed myself in the costume of an Indian, equipped with a small hatchet, which I and my associates denominated the tomahawk, with which, and a club, after having painted my face and hands with coal dust in the shop of a blacksmith, I repaired to Griffin’s wharf, where the ships lay that contained the tea. When I first appeared in the street after being thus disguised, I fell in with many who were dressed, equipped and painted as I was, and who fell in with me, and marched in order to the place of our destination.1 1.A Citizen of New York, A Retrospect of the Boston Tea Party, with a Memoir of George R.T. Hewes, a Survivor of the Little Band of Patriots Who Drowned the Tea in Boston Harbour in 1773, at 38 (New York, S.S. Bliss 1834).Show More

A legal scholar reading this should immediately have a few questions. He dressed as an Indian, complete with a symbolic weapon that was not a tomahawk but that he decided to call a tomahawk. He painted his skin, and not just his face in order to disguise himself, but his hands, too. This was a performance meant to express something. If the shoemaker’s recollection is accurate, then the blacksmith from whom he borrowed coal dust would have understood its message and so would all of the men out that night in the streets of Boston. And whether accurate in every detail or not, there is significance in his choice to remember it that way. Those mechanics, artisans, and labor organizers who discovered and elevated this shoemaker in the 1830s as one of the last surviving members of a heroic generation, and who promoted his memoir as part of an elaborate Independence Day commemoration, must have understood the message he conveyed by making Indian costume so central to the story.2 2.See Alfred F. Young, George Robert Twelves Hewes (1742–1840): A Boston Shoemaker and the Memory of the American Revolution, 38 Wm. & Mary Q. 561, 619–20 (1981).Show More They must, in fact, have meant to amplify it. But from this distance of time, we no longer understand it.

Scholars know (or should know) the Boston Tea Party as a legal event. The Tea Party protestors asserted that their constitutional rights had been violated and demanded redress. But what we have failed to appreciate is that the Bostonians believed that their costumes added something to that claim.3 3.For another consideration of the importance and legal significance of clothing in early America, see Laura F. Edwards, James and His Striped Velvet Pantaloons: Textiles, Commerce, and the Law in the New Republic, J. Am. Hist. (forthcoming) (arguing that “[t]extiles . . . mattered” and that “[w]hen draped in this form of property, people of marginal status assumed distinct legal forms that were difficult to ignore”).Show More It is important that Americans dressed up to assert their rights and it is just as important that Americans remembered the costume as integral, although we may not understand why. And the mystery of it grows in importance when we realize that the costume element of the Boston Tea Party demonstration was far from unique to that event. From the 1760s through at least the 1840s, this was a common element in many protests against sheriffs bearing eviction notices or threatening action from a creditor. White Americans would dress up in Indian costume, make up their faces with their idea of Indian war paint, and participate in destructive and sometimes violent demonstrations.

This is a strange fact about the past, and difficult to square with our lionization of that group of ordinary men now ennobled by the title, “the Founding generation.” But this oddity, and others like it, are critical evidence if we are to understand the constitutional ideas and legal imaginations of men of that generation and those that followed. The Boston Tea Party participants thought they were making a constitutional argument and so did the all of the protestors dressing in costume to assert their claims in the decades that followed. But what did “constitution” mean? We are accustomed to using that word in one way before the Founding-era, and in a completely different sense as soon as Americans began writing their plans of government down. But the longevity and apparent power of this protest symbol attests to the endurance of a British North American form of constitutional expression that did not die out at the Founding and that was not successfully replaced by written constitutions for several generations.

Before, during, and after the ratification of the Federal Constitution of 1787, Americans believed that they were governed under an unwritten constitution, a constitution that confirmed ancient rights and that restricted government action. In discussing an “unwritten constitution,” this Article does not draw the distinction that some scholars have between the text of the written Constitution and the policies and principles that underlie it. Nor does it mean to invoke the distinction between the text of the Constitution and the penumbra that has developed around it since. To Americans of the Founding generation, the unwritten constitution was simply the fundamental law: the law of their forefathers, the law justifying their pride in their English heritage, the law that they fought to defend in the Revolution.

The existence of this unwritten constitution, and particularly its continuity, is something legal scholars have not adequately understood.4 4.In discussing the existence of an unwritten constitution at the Founding, I do not take sides in debates over “popular constitutionalism,” the idea that “the public generally should participate in shaping constitutional law more directly.” Mark Tushnet, Taking the Constitution Away from the Courts 194 (1999); see also Larry Alexander & Lawrence B. Solum, Popular? Constitutionalism?, 118 Harv. L. Rev. 1594, 1616 (2005) (reviewing Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004)); Larry Kramer, Response, 81 Chi.-Kent L. Rev. 1173, 1182 (2006); Suzanna Sherry, Putting the Law Back in Constitutional Law, 25 Const. Comment. 461, 462–63 (2009). Those debates focus on how the written Constitution is implemented—and specifically on the role of “the people,” in ensuring it is “properly interpreted.” Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 5–7 (2004). This Article, by contrast, focuses on a separate source of law entirely, an unwritten constitution, and how citizens both understood and enforced it during the Founding period.Show More Originalists have missed its importance because of their focus on the meaning of ratified constitutional text. They believe that the moment of ratification “fixed” constitutional rights and obligations, and that these may be found in the Constitution’s words. The main branches of originalist debate concern where to find the meaning of those words, whether in convention debates or in the ratification debates or elsewhere.5 5.It has become commonplace to remark on the size of the literature on originalism. See Daniel A. Farber, The Originalism Debate: A Guide for the Perplexed, 49 Ohio St. L.J. 1085, 1085 (1989) (systemizing the “voluminous” literature in existence thirty years ago); Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. Rev. 1, 3 (2009) (citing Farber and noting the literature’s multi-fold growth in the ensuing twenty years). I cannot convey the nuances of this literature here, but for an overview, see, e.g., Robert W. Bennett & Lawrence B. Solum, Constitutional Originalism: A Debate (2011). I mention originalism here only to bring out what I see as its undisputed premise: that its goal is to discover the content of a constitution created at a single moment in time—at its “origination.”Show More A premise underlying this view is that Founding-era Americans would have agreed that the written Constitution was the be-all-end-all, at least as far as constitutions go.6 6.See generally Antonin Scalia, Judicial Adherence to the Text of Our Basic Law: A Theory of Constitutional Interpretation, Address at the Catholic University of America (Oct. 18, 1996), transcript available at https://www.proconservative.net/PCVol5Is225ScaliaTheory​ConstlInterpretation.shtml; see also Randy E. Barnett, Underlying Principles, 24 Const. Comment. 405, 413 (2007) (“To remain faithful to the Constitution when referring to underlying principles, we must never forget it is a text we are expounding.”).Show More

Non-originalist scholars, on the other hand, have sought to identify values that have come into the Constitution over its two hundred year “life.”7 7.Bruce Ackerman is perhaps the most prominent current theorist of “living constitutionalism.” See, e.g., Bruce Ackerman, The Living Constitution, 120 Harv. L. Rev. 1737 (2007). Bill Eskridge, who has argued that certain “super-statutes” have become so essential that they are now within the “working constitution,” also belongs among the greats. See William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 Duke L.J. 1215, 1216–17 (2001); see also Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408, 413–14 (2007) (defining the “functional” constitution to include formal practices, norms, and structures of government). My project departs from these now familiar forms of living constitutionalism. It is not about a written Constitution that evolves because it is “alive,” but about a separate and supplementary unwritten constitution that existed before and persisted through the social and legal changes of the 1780s. Some of the values of that unwritten constitution were also reflected in our written Constitution and some of them were not.Show More Building on the concept of a “penumbra” around constitutional terms, these scholars observe that the Constitution’s words have thickened with meaning over time and through their use by an evolving society.8 8.This idea’s scholarly heritage goes back at least to Karl Llewellyn, see K.N. Llewellyn, The Constitution as an Institution, 34 Colum. L. Rev. 1, 28 (1934), and its judicial heritage is arguably much older, see Brannon P. Denning & Glenn Harlan Reynolds, Comfortably Penumbral, 77 B.U. L. Rev. 1089, 1092–93 (1997) (arguing that McCulloch v. Maryland is “the quintessential example of penumbral reasoning”).Show More Akhil Amar’s recent book, America’s Unwritten Constitution, is a prime example of this genre: he argues that that through court cases and rights movements, Americans have built interstitial meanings into the Constitution.9 9.Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By, at ix–xi (2012).Show More But even those scholars start from the premise that all of this development began in 1787.

In short, originalist and non-originalist scholars share a perspective on the written Constitution: that it operated as a hard break.10 10.See, e.g., Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1, 6–7 (2015) (explaining that a “core idea[]” of originalist constitutional theory is that “the original meaning . . . of the constitutional text is fixed at the time each provision is framed and ratified”). The originalist shares this focus on that one moment with, for instance, Akhil Amar’s premise in America’s Unwritten Constitution. There, too, the critical question is, “[h]ow can Americans be faithful to a written Constitution”? Amar, supra note 9, at x. The difference between them is the belief that as Americans “venture beyond” the writing, they create what Amar calls an “unwritten Constitution” that “supports and supplements the written Constitution without supplanting it.” See id. at x–xi. This brand of “living constitutionalism” agrees with the premise that the only important American constitution was “born” in 1787 and began to develop from there. It does not address the topic of this Article: a strong heritage of constitutional values that were not included in the text, but that Americans continued to defend as their fundamental rights in the years after 1787.Show More Even when scholars and jurists look back further than the 1780s, they do so largely to learn whether certain terms contained in constitutional text incorporated a pre-existing common law meaning.11 11.See, e.g., Michael W. McConnell, Time, Institutions, and Interpretation, 95 B.U. L. Rev. 1745, 1756–57 (2015) (“The Seventh Amendment and the Habeas Corpus Clause have consistently been interpreted in light of the common law as of 1791.”); Bernadette Meyler, Towards a Common Law Originalism, 59 Stan. L. Rev. 551, 552 (2006) (“[O]riginalists urge that particular terms and phrases—including ‘law of nations,’ ‘habeas corpus,’ ‘privileges and immunities,’ ‘otherwise re-examined,’ and ‘assistance of counsel’—should be interpreted in light of their connotations under the common law.”); see also Saenz v. Roe, 526 U.S. 489, 524 (1999) (Thomas, J., dissenting) (“The colonists’ repeated assertions that they maintained the rights, privileges, and immunities of persons ‘born within the realm of England’ and ‘natural born’ persons suggests that, at the time of the founding, the terms ‘privileges’ and ‘immunities’ (and their counterparts) were understood to refer to those fundamental rights and liberties specifically enjoyed by English citizens and, more broadly, by all persons.”).Show More They do not look back to a constitution that exists separately from our written one. They share a view that whatever American colonial subjects believed a “constitution” was before the Revolution, Americans altered that idea completely once the property-holding gentlemen among them met and decided to write something down.

This Article starts from a different premise: that Americans of the Founding generation did not share our view that the only “constitution” that mattered was the one the Framers designed. Instead, having grown up as Britons, and having lost friends and family in a war to defend their rights as such, they still thought of themselves as the beneficiaries of a constitution of customary right. This is not to deny the importance of the written Constitution, or to dispute that it was significant that the Founders decided to write something down.12 12.See Nikolas Bowie, Why the Constitution Was Written Down, 71 Stan. L. Rev. 1397, 1400 (2019).Show More It is only to assert, as does the written Constitution itself, that the Founders did not intend that “[t]he enumeration in the Constitution[] of certain rights” would “be construed to deny or disparage others retained by the people.”13 13.U.S. Const. amend. IX.Show More

The way legal scholars ask historical questions has hindered our ability to appreciate the endurance and the continuity of unwritten constitutional­ism. It is common for a legal scholar to plumb the historical record to either confirm or deny a theory about what the Constitution means for us right now. But the archive does not function well as a magic eight ball. The yes/no/maybe/ask again approach to historical research, by fixating on narrow questions about constitutional text, forecloses really interesting questions about what a constitution is.

The problem with the way legal scholars use history is not only the questions we ask, it is also our methodology.14 14.Even a small sampling of the most recent articles doing originalist work reveals the sources they find relevant. See, e.g., Jennifer L. Mascott, Who Are “Officers of the United States”?, 70 Stan. L. Rev. 443, 445 (2018) (canvassing legal dictionaries, convention debates, “The Federalist Papers,” and “Correspondence and Writings from Founding-Era Figures”). So closely tied is the project of originalism to these types of sources that there is a secondary literature debating how best to use each of them. See, e.g., Gregory E. Maggs, A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358, 360 (2014); cf. Jennifer L. Mascott, The Dictionary as a Specialized Corpus, 2017 BYU L. Rev. 1557, 1561.Show More As any historian can tell you, going into an archive can be a humbling experience. What one finds in a historical record provides a small window onto the past, through which we can dimly perceive only a part of the action. When a legal scholar goes into the archive with a fixed question in mind, she must dismiss as irrelevant anything that is not responsive, along with anything that she does not understand. But given the very limited view the historical record provides, dismissing any evidence at all risks missing important truths. The puzzles one encounters during primary research are actually the archives’ greatest prizes. Instead of skipping over these to chase after hints in the records that might confirm a favorite hunch or cherished thesis, it is worthwhile to linger on the oddities. Exploring these reveals the past on its own terms, allowing the record to propose its own questions, and suggest its own answers.

This Article is about a protester that I will call the “white Indian,” because that is what this man would have called himself. He emerged again and again from archival research while I was hunting for something else. Wherever conflicts arose over the fairness of a law pitting owners or creditors against renters and debtors, whether in staid newspaper debates or in all-too-frequent armed insurrections, this white man in moccasins, or with a blanket around his shoulders, or with a painted face, or wielding a tomahawk, appeared as the avatar of the honest debtor or the dispossessed squatter. I was so puzzled by him that I stopped what I was doing and gave this recurring figure a closer look. I found that at least two scholarly works had already lingered over white Indians: an elegant short essay by Alan Taylor, written when he was still a graduate student, and a thoughtful full-length intellectual history by Philip Deloria.15 15.Philip J. Deloria, Playing Indian 5 (1998); Alan Taylor, “Stopping the Progres of Rogues and Deceivers”: A White Indian Recruiting Notice of 1808, 42 Wm. & Mary Q. 90, 94 (1985).Show More But given my preoccupations as a legal historian, I read these figures in a different light. I came to understand that they represented a series of interconnected ideas about authentic American identity and virtue.16 16.This Article does not fully explore import of this custom to the history of American racism, or its connections, such as they are, to the blackface tradition. For a cultural history starting point, see Dressing in Feathers: The Construction of the Indian in American Popular Culture 2–3 (S. Elizabeth Bird ed., 1996); Deloria, supra note 15, at 5.Show More And more than this, the Indian dress was a potent legal symbol, both for the people who wore the costume and the people who saw it.

I came to see the white man in Indian dress as an assertion of rights under America’s unwritten constitution. This Article will explain why, and in the process, model an alternative way of bringing history into legal scholarship. To take Americans’ unwritten constitution seriously, one has to see as relevant behaviors, norms, and cultural practices typically invisible to the legal scholar. Scholars parsing and reparsing text, opinions, dictionaries, and the like have missed the unwritten constitution because its defenders often made their claims out of court. My goal is not to resolve the relationship between the unwritten constitution and the written one. My goal is simply to convince you that it exists, to suggest that the relationship between it and the written Constitution is important, and to begin looking for this constitutionalism, which appears more often than not in unexpected places.

This Article proceeds in three parts. First, it explains why this strange artifact, mob action by white men in Indian costume, should be read as an expression of unwritten constitutionalism. Then, it will sound a theory on some of the specific constitutional rights this costume invoked. And finally, it will show how long this form of constitutional expression persisted and discuss some of the implications of this long life for how we should understand our legal past.

  1. * Associate Professor of Law and History, University of Virginia School of Law. I would like to thank Bridget Fahey, Risa Goluboff, Sally Gordon, Hendrik Hartog, Tony Kronman, Bill Nelson, Rich Schragger, and Eugene Sokoloff for helpful comments on an earlier draft. I am also grateful to the participants in the faculty workshop at Georgetown University Law Center and at the University of Pennsylvania School of Law’s Legal History Workshop. ↑
  2. A Citizen of New York, A Retrospect of the Boston Tea Party, with a Memoir of George R.T. Hewes, a Survivor of the Little Band of Patriots Who Drowned the Tea in Boston Harbour in 1773, at 38 (New York, S.S. Bliss 1834). ↑
  3. See Alfred F. Young, George Robert Twelves Hewes (1742–1840): A Boston Shoemaker and the Memory of the American Revolution, 38 Wm. & Mary Q. 561, 619–20 (1981). ↑
  4. For another consideration of the importance and legal significance of clothing in early America, see Laura F. Edwards, James and His Striped Velvet Pantaloons: Textiles, Commerce, and the Law in the New Republic, J. Am. Hist. (forthcoming) (arguing that “[t]extiles . . . mattered” and that “[w]hen draped in this form of property, people of marginal status assumed distinct legal forms that were difficult to ignore”). ↑
  5. In discussing the existence of an unwritten constitution at the Founding, I do not take sides in debates over “popular constitutionalism,” the idea that “the public generally should participate in shaping constitutional law more directly.” Mark Tushnet, Taking the Constitution Away from the Courts 194 (1999); see also Larry Alexander & Lawrence B. Solum, Popular? Constitutionalism?, 118 Harv. L. Rev. 1594, 1616 (2005) (reviewing Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004)); Larry Kramer, Response, 81 Chi.-Kent L. Rev. 1173, 1182 (2006); Suzanna Sherry, Putting the Law Back in Constitutional Law, 25 Const. Comment. 461, 462–63 (2009). Those debates focus on how the written Constitution is implemented—and specifically on the role of “the people,” in ensuring it is “properly interpreted.” Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 5–7 (2004). This Article, by contrast, focuses on a separate source of law entirely, an unwritten constitution, and how citizens both understood and enforced it during the Founding period. ↑
  6. It has become commonplace to remark on the size of the literature on originalism. See Daniel A. Farber, The Originalism Debate: A Guide for the Perplexed, 49 Ohio St. L.J. 1085, 1085 (1989) (systemizing the “voluminous” literature in existence thirty years ago); Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. Rev. 1, 3 (2009) (citing Farber and noting the literature’s multi-fold growth in the ensuing twenty years). I cannot convey the nuances of this literature here, but for an overview, see, e.g., Robert W. Bennett & Lawrence B. Solum, Constitutional Originalism: A Debate (2011). I mention originalism here only to bring out what I see as its undisputed premise: that its goal is to discover the content of a constitution created at a single moment in time—at its “origination.” ↑
  7. See generally Antonin Scalia, Judicial Adherence to the Text of Our Basic Law: A Theory of Constitutional Interpretation, Address at the Catholic University of America (Oct. 18, 1996), transcript available at https://www.proconservative.net/PCVol5Is225ScaliaTheory​ConstlInterpretation.shtml; see also Randy E. Barnett, Underlying Principles, 24 Const. Comment. 405, 413 (2007) (“To remain faithful to the Constitution when referring to underlying principles, we must never forget it is a text we are expounding.”). ↑
  8.  Bruce Ackerman is perhaps the most prominent current theorist of “living constitutionalism.” See, e.g., Bruce Ackerman, The Living Constitution, 120 Harv. L. Rev. 1737 (2007). Bill Eskridge, who has argued that certain “super-statutes” have become so essential that they are now within the “working constitution,” also belongs among the greats. See William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 Duke L.J. 1215, 1216–17 (2001); see also Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408, 413–14 (2007) (defining the “functional” constitution to include formal practices, norms, and structures of government). My project departs from these now familiar forms of living constitutionalism. It is not about a written Constitution that evolves because it is “alive,” but about a separate and supplementary unwritten constitution that existed before and persisted through the social and legal changes of the 1780s. Some of the values of that unwritten constitution were also reflected in our written Constitution and some of them were not. ↑
  9. This idea’s scholarly heritage goes back at least to Karl Llewellyn, see K.N. Llewellyn, The Constitution as an Institution, 34 Colum. L. Rev. 1, 28 (1934), and its judicial heritage is arguably much older, see Brannon P. Denning & Glenn Harlan Reynolds, Comfortably Penumbral, 77 B.U. L. Rev. 1089, 1092–93 (1997) (arguing that McCulloch v. Maryland is “the quintessential example of penumbral reasoning”). ↑
  10. Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By, at ix–xi (2012). ↑
  11. See, e.g., Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1, 6–7 (2015) (explaining that a “core idea[]” of originalist constitutional theory is that “the original meaning . . . of the constitutional text is fixed at the time each provision is framed and ratified”). The originalist shares this focus on that one moment with, for instance, Akhil Amar’s premise in America’s Unwritten Constitution. There, too, the critical question is, “[h]ow can Americans be faithful to a written Constitution”? Amar, supra note 9, at x. The difference between them is the belief that as Americans “venture beyond” the writing, they create what Amar calls an “unwritten Constitution” that “supports and supplements the written Constitution without supplanting it.” See id. at x–xi. This brand of “living constitutionalism” agrees with the premise that the only important American constitution was “born” in 1787 and began to develop from there. It does not address the topic of this Article: a strong heritage of constitutional values that were not included in the text, but that Americans continued to defend as their fundamental rights in the years after 1787. ↑
  12. See, e.g., Michael W. McConnell, Time, Institutions, and Interpretation, 95 B.U. L. Rev. 1745, 1756–57 (2015) (“The Seventh Amendment and the Habeas Corpus Clause have consistently been interpreted in light of the common law as of 1791.”); Bernadette Meyler, Towards a Common Law Originalism, 59 Stan. L. Rev. 551, 552 (2006) (“[O]riginalists urge that particular terms and phrases—including ‘law of nations,’ ‘habeas corpus,’ ‘privileges and immunities,’ ‘otherwise re-examined,’ and ‘assistance of counsel’—should be interpreted in light of their connotations under the common law.”); see also Saenz v. Roe, 526 U.S. 489, 524 (1999) (Thomas, J., dissenting) (“The colonists’ repeated assertions that they maintained the rights, privileges, and immunities of persons ‘born within the realm of England’ and ‘natural born’ persons suggests that, at the time of the founding, the terms ‘privileges’ and ‘immunities’ (and their counterparts) were understood to refer to those fundamental rights and liberties specifically enjoyed by English citizens and, more broadly, by all persons.”). ↑
  13. See Nikolas Bowie, Why the Constitution Was Written Down, 71 Stan. L. Rev. 1397, 1400 (2019). ↑
  14. U.S. Const. amend. IX. ↑
  15. Even a small sampling of the most recent articles doing originalist work reveals the sources they find relevant. See, e.g., Jennifer L. Mascott, Who Are “Officers of the United States”?, 70 Stan. L. Rev. 443, 445 (2018) (canvassing legal dictionaries, convention debates, “The Federalist Papers,” and “Correspondence and Writings from Founding-Era Figures”). So closely tied is the project of originalism to these types of sources that there is a secondary literature debating how best to use each of them. See, e.g., Gregory E. Maggs, A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358, 360 (2014); cf. Jennifer L. Mascott, The Dictionary as a Specialized Corpus, 2017 BYU L. Rev. 1557, 1561. ↑
  16. Philip J. Deloria, Playing Indian 5 (1998); Alan Taylor, “Stopping the Progres of Rogues and Deceivers”: A White Indian Recruiting Notice of 1808, 42 Wm. & Mary Q. 90, 94 (1985). ↑
  17. This Article does not fully explore import of this custom to the history of American racism, or its connections, such as they are, to the blackface tradition. For a cultural history starting point, see Dressing in Feathers: The Construction of the Indian in American Popular Culture 2–3 (S. Elizabeth Bird ed., 1996); Deloria, supra note 15, at 5. ↑

Foreword

On August 11 and 12, 2017, neo-Nazis and Klansmen came to Charlottesville to hold a rally meant to assert themselves as a force in American society. That event, and the President’s reaction to it, raised the disturbing possibility that for the first time in more than fifty years, white supremacy could be a matter of debate at the highest levels of American politics. This Foreword asks what legal scholarship has to contribute in times like these. It also introduces a partial answer: a group of student and faculty pieces analyzing some of the many difficult legal questions the rally raised.

*  *  *

It’s hard to know where to begin the story that culminated in the murder of Heather Heyer and the injury to our body politic.

It could start in the early twentieth century, when black service in WWI and the rhetoric of that war gave black Americans new hope and inspired them to new militancy in demanding equal citizenship.[1] These hopes, short-lived, were “smashed” by a “reaction of violence that was probably unprecedented.”[2] The last six months of 1919 saw twenty-five race riots in American cities, north and south, in which “mobs took over cities for days at a time, flogging, burning, shooting, and torturing at will.”[3] It was also in 1919, that Paul Goodloe McIntire, a one-time UVA attendee and a great university benefactor, dedicated the first of the four bronze statues he had commissioned to beautify his home town. In 1924, he formally presented the last to the city of Charlottesville: a statue of Robert E. Lee, along with the land it stood on, a landscaped parcel he had named Lee Park. There is no coincidence here. The statue was a symbolic affirmation of the same principles expressed by the violence that destroyed black communities from Chicago to Tulsa: that is, white supremacy and the rejection of blacks as social equals and as claimants to the economic and political rewards of American democracy. 

It could instead be told as a twenty-first century story, beginning with the election of the first black president and the furious, sustained, racist counter-reaction among some stunned Americans awakened to new political consciousness. The emergence of a radical racist fringe, condemned by right-thinking people everywhere as unrepresentative of the American way, was nevertheless tolerated by some as a harmless evil. And in districts gerrymandered such that the only threat came from primary challengers, many conservatives decided they could not afford to alienate birther conspiracists and other radicals.

Or it could start more recently, in 2014, with the killing of the black teenager, Trayvon Martin, and the acquittal of his killer, George Zimmerman, who was later able to sell the weapon at auction for more than $130,000. Or it could start with the death of Michael Brown, whose body was left to fester where it fell for four hours after the fatal encounter. It would discuss how Brown’s death and the subsequent acquittal of Brown’s killer sparked a movement. And it would cover how that loosely organized effort, named for a mild observation, Black Lives Matter, became the subject of a wildly popular petition to Obama’s White House demanding that it be labeled a terrorist organization.

Perhaps the murders closest to the events in Charlottesville this August were those committed in 2015 by the childish and “troubled” Dylann Roof, who joined black parishioners for their Bible reading class before opening fire, killing nine. He reportedly felt, watching the rioting and protests that followed the killing of Trayvon Martin and of Freddie Gray, that “blacks were taking over the world,” and that he needed to act to save “the white race.” During his confession, he explained that he had wanted to start a “race war.” But the search for his motive didn’t have to go further than his website, where Roof posed with guns and a Confederate battle flag. Dylann Roof saw himself as the inheritor of the tradition represented by that flag. And it was in recognition that Roof had it right about what the flag represented that statehouses across the south began to discuss taking that symbol down. It came down in South Carolina. It came down in Alabama. And in Charlottesville, citizens began a serious conversation about removing Robert E. Lee from his place of honor in town.

These are some of the relevant actions, reactions, and counter-reactions, the concentric parabolas that will one day resolve into a coherent narrative arc that tells us who we were as a people and what we became. We are still too close to see the shape of the entire wave or mark whether the tide is coming in or going out. What we do know is what happened in Charlottesville in August 2017 fit into a pattern: progress toward racial equality perceived as a threat and violently opposed. And it occurred as the nation endured what might be remembered as that same dynamic playing out in the presidential election, in an atmosphere of great fear, mistrust, and national division.

The Charlottesville saga began in February of 2017 with a city council vote, 3-2, to remove the statues of Robert E. Lee and “Stonewall” Jackson. This prompted a lawsuit by plaintiffs including the Virginia division of the Sons of Confederate Veterans and others to prevent the statues’ removal.[4] They invoked a Virginia statute protecting war memorials, and argued that removing the statue would violate the terms of McIntire’s gift of Lee Park. Over the life of this case, while the judge has considered the briefing, letters, emails, and calls from Americans both supporting the statue and condemning it have inundated the clerk’s office. Whatever meaning these calls have for the people making them, the judge has called them a “counterproductive . . . distraction;” “worse than a waste of time;” and grumbled “[t]hat’s not how our system works, nor should it work.”[5] In May, the judge granted the plaintiffs a six-month temporary injunction barring the city from removing the statues and directed the parties to prepare further briefing. The judge’s temporary injunction did not prevent the city from renaming the park where the statue stood, and so in June 2017 Lee Park became Emancipation Park.

It is during this period, while the fate of the statues remains uncertain, that self-described White Nationalists have come to Charlottesville to defend the threatened statue and to protest all that its removal represents. They rallied in the light of Tiki torches with Richard Spencer in May, 2017. The Ku Klux Klan came to Emancipation park in July, 2017. And they held a “Unite the Right” rally on August 11-12, 2017 that drew participants and counter-protesters to Charlottesville from around the country. This August rally was about more than the statue to the organizers—it was meant to unite and publicize American white supremacy and included a plan to hear speakers drawn from the leadership of far-flung but ideologically aligned white supremacist groups. Out of a concern for public safety, the city tried to move the rally’s permit to McIntire Park, on Charlottesville’s outskirts. But the rally’s organizer sued in federal court under the First Amendment and won the right to hold the rally downtown.

The event began on the evening of August 11, with a well-organized, two-by-two, firelight march by participants uniformed in khakis and collared shirts, chanting “White lives matter,” “You will not replace us,” “Jews will not replace us,” “Hail Trump,” and the Nazi slogan “blood and soil.” They processed down the Lawn and to UVA’s rotunda and then gathered around the statue of Jefferson, overwhelming a small band of students standing there with linked hands and a hand-made banner rejecting white supremacy. The violence that ensued, and the initial absence of police aside from a single officer, was a foreshadowing of the chaos of the following day.

Over the course of the next morning, gun-toting and uniformed white supremacists, bearing Nazi insignia, confederate flags, riot shields, and the occasional “Make America Great Again” hat confronted clergy, UVA students, anti-fascist groups, Black Lives Matter protesters, and others. An armed, home-grown “militia” also arrived to “keep the peace.” The Charlottesville police came to the rally less prepared for violence than the participants. Outgunned, they mostly stayed back as mobs clashed on Market Street, rally-goers and counter-protesters wielding sticks and clubs, fists, and sprayed chemicals. At around 11:20, the police declared the rally an unlawful assembly. Small skirmishes and violence continued as the crowd dispersed, including a vicious beating caught on video, in which six white men kicked and clubbed black teenager DeAndre Harris as he lay on the ground. But the major body of rally-goers had begun to dissipate when the murder occurred. White supremacist James Alex Fields, Jr. sped his car down Fourth Street, ramming into a group of counter-protesters and then reversed his car into another group. Nineteen people were injured. Heather Heyer, a 32-year-old Charlottesville resident who had shown up to protest intolerance, was killed. And there were two other deaths that day: state troopers Lieutenant H. Jay Cullen and Trooper-Pilot Berke M.M. Bates, who had monitored the rally by helicopter, suffered a crash a few miles from the downtown.

But the story cannot end there. To many Charlottesville residents, the events seemed straightforward: evil had come to Charlottesville wearing hoods and bearing swastikas and had left its mark in blood. But when the President came to the podium later that day to address the events, he said only that “We condemn in the strongest possible terms this egregious display of hatred, bigotry and violence on many sides— on many sides.”[6] The response was swift. Congressmen of both political parties denounced Nazism and racism on their Twitter feeds and condemned the idea that two culpable “sides” were to blame for the violence in Charlottesville. The President reemerged two days later with a prepared statement in which he asserted that “racism is evil.”[7] But the following day he doubled down on his earlier words. Insisting that there were “fine people on both sides” of the event, he called for an acknowledgement of the equal guilt of the anti-Nazi protesters.[8]

Congress’ reaction was unprecedented: it sent a veto-proof bill to the President’s desk condemning white supremacy, in effect requiring him to sign a statement stronger than the message he had issued of his own accord.[9] The President also shed supporters in the days following his remarks. Those who stood by him were forced to either voice their agreement, mischaracterize his remarks, speak to his “heart,” which they “knew” to be non-racist or not anti-Semitic, or accuse liberals of hysteria. Some also hewed to the theme of the statue, echoing the President in asking whether slave-owners Jefferson and Washington would be the next torn down from their pedestals. In doing so, they explicitly equated Lee, a historical figure known for his traitorous and costly rebellion in defense of slavery, with American presidents whose legacies are complex but overwhelmingly positive, and who are popularly known for their state-building efforts including winning the Revolutionary War and penning the Declaration of Independence.

*  *  *

This is where we find ourselves. The events in Charlottesville are one window onto a remarkable moment in American history and in American politics. And they reveal that we are in a dangerous place. The many risks we face include the possibility that the ideas voiced by the rally-goers and countenanced by the President will make their way back into the mainstream as a generation of newly politically-aware citizens is nurtured in the impression that those ideas form part of the normal back and forth between America’s two great political parties.

So what do we legal scholars do when hate marches in the streets and takes comfort from official silence or equivocation?

We can get angry. In fact, there is a moral obligation to be angry when so much is at stake and has been put at stake through carelessness. There are times when we must go into the streets as some UVA students did, and as Heather Heyer did, to use our bodies to impede the progress of extremism and to counter its narrative of dominance. We go to law school, however, because our main strength is not in the fiery emotional appeal or in the mode of the chanted call and response, but in logic. And in the usual course, attendance at law school cements this preference for the syllogism until it is almost an involuntary impulse.

And the socialization into the practice of law that happens in law school is about more than logic. It also has a component of faith. A few years ago, I went to a one-man show on Broadway about Thurgood Marshall’s life that dwelled on his work as an activist lawyer in the South and the dangers and threats he faced during that time. When I learned that Owen Fiss, the great civil procedure professor and former Marshall law clerk, had also seen it, I asked him what he had thought of the play. He said he thought it was brilliant, but that it had a flaw. In his view, in portraying Marshall primarily as a civil rights activist, the play had failed to capture his essential love for the law and his enduring belief in law’s capacity.

It isn’t surprising that the layman author of Thurgood could more easily convey the fire of Marshall the warrior than the optimism of Marshall the lawyer and jurist. That optimism, a belief in the ability to find the change we need through the rule of law and the elaboration of legal principles, is something learned in law school. While not as obvious or immediate in emotional impact, it is nevertheless the constructive corollary to the anger and frustration of street protest. And it is the mutually reinforcing efforts of law and protest, of anger and optimism, that have dragged this country out of the darkness of the early twentieth century, and that are responsible for all of the civil rights gains we have made.

Part of what we do as legal scholars, and what the best American jurists have done, is to trust that the great values of American liberalism are there in the precedents. During times that fail to live up to the tolerance and equal treatment and procedural fairness that we know are at the heart of American democracy, we need only look to those precedents to produce those values and then amplify them. Scholarship can play the role of the judicial dissent. Through it, we produce and preserve a vision for what the law can be or should be—and, with our help, what it will be.

*  *  *

To the poverty of political discourse we hold out, as always, the treasure house of the American legal tradition. That is our contribution.

 

 

[1]C. Vann Woodward, The Strange Career of Jim Crow 114 (1974).

[2]Id.

[3]Id.

[4]Paul Duggan, Battle Over Robert E. Lee Statue in Hands of Charlottesville Judge, Wash. Post (Sept. 1, 2017), https://perma.cc/HGZ2-EDCT.

[5]Id.

[6]Carly Sitrin, Read: President Trump’s Remarks Condemning Violence “on many sides” in Charlottesville, Vox (Aug. 12, 2017, 4:09 PM), https://perma.cc/JS4K-WMS3.

[7]Glenn Thrush, New Outcry as Trump Rebukes Charlottesville Racists 2 Days Later, N.Y. Times (Aug. 14, 2017), https://www.nytimes.com/2017/08/14/us/politics/trump-charlottesville‌-‌protest.html.

[8]Meghan Keneally, Trump Lashes Out at “alt-left” in Charlottesville, Says “fine people on both sides”, ABC News (Aug. 15, 2017, 4:58 PM), https://perma.cc/QB6V-JKY7.

[9]Danielle Diaz et al., WH: Trump “looks forward” to Signing Resolution Condemning White Supremacists, CNN (Sept. 13, 2017, 3:00 PM), https://perma.cc/9CMA-TGVZ.

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